The judicial system in Mexico (part II)
I co-wrote this series of articles in 2009 with my mother, N.J. Blake, after being awarded an investigative journalism grant by the AVINA foundation. They were originally published on openDemocracy.net.
Transparency, security, individual rights, the end of impunity, justice, hope. These are the promising words on the lips of Mexico’s politicians, pundits and public today as the pressures exerted on the country’s nascent democracy test its ability to adapt and survive. As inspiring as these shining concepts can be, transforming them into reality is a nearly super-human task; after all, can individual rights truly be reconciled with security in a state plagued by violence? Does increased transparency really lead to the end of impunity, since corrupt politicians remain in power throughout Mexico despite revelations of their abusive misconduct? These are political questions for the ages, universally asked and never fully answered. But in Mexico, there is such profound complexity, contradiction and unpredictability built into its life story that long-time observers may feel it is simply naïve to believe change is even possible in this entrenched legal, social and political structure, one that in the words of political analyst Denise Dresser, “makes crime possible.” As the looming process of overhauling the judicial system slowly takes shape on the horizon, we wonder, what will it change, how will it affect the everday lives of Mexicans?
Where to begin when confronted with such overwhelming questions? What exactly does President Calderon’s judicial reform project, due to be completed by 2016, entail?
In brief, by that time each of Mexico’s 31 states must have reformed its penal system from inquisitorial to accusatorial, from written to oral. Since the definitions of crimes are not uniform in Mexico – in fact, even what is considered a crime varies from state to state – the reform’s goal is to standardize not only the offenses themselves, but also their punishments. However, state diversity regarding controversial issues such as abortion, the death penalty, makes this a challenging prospect. For example, while first-term abortion has now been legal in Mexico City for over a year, the conservative state of Guanajuato’s legislature has just revoked the right to abortion even in cases of rape.
The new amendments place the burden of proof on the state, the presumption of innocence is now written into Article 20 as is the right to remain silent and the rules of discovery. Legal education will have to be completely restructured to include the teaching of oral advocacy since cross-examinations, opening and closing arguments and so on are virtually unknown here – except through American television and movies, which paint a somewhat skewed, if absorbing, picture of an adversarial legal system. Courtrooms must be built to hold these now-public trials, police investigatory powers must be improved and expanded, a reliable chain of custody for both evidence and detainees must be developed, independent offices of expert witnesses must be established and a new class of judges created to expedite warrants. Only then begins the process of re-educating a skittish populace disinclined to even report crime, much less testify as a witness to it. According to the documentary El Tunel, a devastating look at the reality of the criminal justice system, a full 75% of crimes go unreported due to fear of the police as well as the certainty that reporting it is a complete waste of time.
Is it possible these reforms, initiated by the very people who have profited from the status quo, will truly be able to take hold? In a December 2007 article, the director of the department of law of ITESM-CCM, Emilio Rabasa Gamboa, wrote optimistically about the vital importance of abandoning the current autocratic system which presumes guilt from the moment of detention and reduces the “trial” to a mere formality in which the accused never faces those who will determine his or her fate. Rabasa viewed the judicial reform as a crucial step in the transition to an open system where the power of the state is balanced by the rights of the accused, who would be transformed from a subject under the law to a citizen protected by it. In the heady days before its passage, he declared “this is not just a reform, but a revolution, perhaps not exempt from limitations and deficiencies…but welcome to Mexico!”
A year after Calderón’s reform package became law, Mr. Rabasa wrote bitterly: “Mexico, the country of maximum legislation and minimum observance of the law…The oral reform is not advancing. The interests of the old, anachronistic and corrupt written system outweigh it; thus, justice in Mexico is, once again, hamstrung.” With the exception of Chihuahua, Oaxaca, Nuevo León, Morelos and the State of Mexico – where criminal code reform was already underway – progress on implementation has been minimal. In the case of Morelos, oral trials have already been suspended due to flagrant and publicly denounced corruption.
There is time yet. These ambitious reforms could conceivably lead to a more just, effective system, one that inspires public confidence, but this is a country with a culture of illegality, where no one knows who to trust, who is on which side, who to bribe and where the last resort if one is in trouble, after reaching out to every relative, friend, and passing acquaintance, is to call the police. We have a saying here, a dicho:sin mordida no hay baile. It’s been true for centuries – how to undo it in a mere eight years? Even Calderón has wearily admitted: “We decided to operate on the body politic and discovered that it had cancer.”
This kind of disillusionment is felt by many here who daily throw up their hands in befuddled resignation; the only prism of truth that begins to clarify the contradictory facets of Mexico is that she re-lives her history every day. A walk down a crowded boulevard past ancient temples and towering skyscrapers in Mexico City or on a quiet, cobblestone street in San Miguel de Allende provides glimpses of the centuries of colonialism, the oppression perpetrated by the Catholic Church, the Messianic fanaticism of the Revolution and Guerra Cristera, endemic corruption, labor unrest. It is this landscape of the undying past that inspires many to conclude that Mexico is a country that can only be ruled by a whip and an iron hand. As of July 6, 2009, due to the nationwide midterm elections, the old guard, the PRI, is once again in charge of the clattering train. Five of the six governorships up for reelection were claimed by the PRI and a mayority of congressional seats are now in priista hands. This, a mere nine years since the PRI appeared to have been relegated to the pages of history. Lack of security and its subsequent impact on the economy and psychology of the population has paved the way for an historic recovery.
For all the talk of transparency, the presumption of innocence and well-trained public defenders, what will ultimately determine the success or failure of these reforms is whether or not the carefully cultivated, and vigorously protected, culture of impunity can be dismantled – whether the will for change among the privileged class can overcome this grip of impunity. To quote Naomi Klein, “The truly powerful feed ideology to the masses like fast food, while they dine on the most rarified delicacy of all: impunity.” Because, essentially, impunity is what’s rotten in the state of Mexico; impunity is what its citizens most fear and loathe.
Lydia Cacho, a prominent journalist and activist whose personal experience with the judicial system is famously appalling, has said of the reform: “…it will most likely guarantee the already evident, serious and systematic violation of the human rights of Mexicans.” While recognizing the positive elements of the reform – greater emphasis on rehabilitation, concern for the rights of victims and the transparency implicit in oral trials, ultimately she believes these reforms will simply enable further abuses because those administering justice are the same people who corrupt it and use it to their advantage.
Because the drug war seems to be spiraling out of control, one of the goals of the reform is to specifically target the cartels. There will, in fact, be two parallel systems of criminal justice. In Article 16 of the Constitution, for example, there is a new clause that relates specifically to organized crime, which is defined as “an organization made up of three or more people whose intent is to repeatedly and on a regular basis commit crimes, under the terms of the applicable law.” This clause has been one of the most controversial because of its breadth. For example, under that definition, and this being Mexico, some human rights organizations such as the Centro de Derechos Humanos Miguel Pro, believe it would be possible to apply it to demonstrators arrested at protestors. The new clause severely restricts the rights of those suspected of belonging to criminal organizations and allows the authorities to hold suspects for up to 80 days without being charged. This is one of the longest pretrial detention times in any democratic country and it has been criticized for violating international human rights standards, but that raises the question of whether there can be an international standard at all when the unique situation of each country requires case by case analysis and the application of situational ethics as opposed to a cookie-cutter decree from on high. Proponents of the amendment insist it is necessary in order to allow investigators time to develop a case and shore up evidence, pointing out that freed drug traffickers are unlikely to return for trial. The original changes to Article 16 also included a clause which gave police the right to search homes without a warrant if the officers believed a crime was being committed inside, thus giving the seemingly hindered cops greater latitude in combating organized crime. Human rights groups won their fight against that clause and it was dropped from the legislation passed last year. But in reality, the police, and now the military, do barge into homes without warrants, suspects are regularly detained for far longer than 80 days and drug traffickers walk out of prison by the dozens, most of which has been unconstitutional since 1917.
We look for signs here, portents of what is to come, be it drought, floods or the next economic crisis. But who could foresee the staggering damage done to the Mexican economy by what turned out to be just another influenza virus? One day all is normal, the next everyone is in masks, kids are herded out of school, businesses are reeling and tourists are canceling vacation plans en masse. Some see the “quick response” on the part of the government as a sign of progress, a sign that it puts its people before its economy; a contradiction that many Mexicans are now suffering from as their wages plummet or evaporate, and their businesses stagnate. Occasionally there are curious indications that the winds of change may have reached Mexico – the IFE (Instituto Federal Electoral) recently levied an enormous fine on the ruling PAN (Partido de Accion Nacional) party for ‘negative campaigning’ due to its use of the word “PRImitivo” in political propaganda (a play on words using the name of their political rival, the PRI). Is this sudden leap into the arms of political correctness, in a country that has dealt with the opposition through assassination or bribery, plomo o plata, a sign of a fundamental transition? In a word, no. Optimists, when asked how the massively complex task of overhauling a labyrintine, corrupt legal system can possibly be accomplished, will answer with a confident, “Well, by strengthening the rule of law of course.” Of course! People talk about the rule of law down here, the estado de derecho, as if it existed. It doesn’t.
Yet, there is a strangely stubborn stability to Mexico. This is a country where the oral, public trial, enshrined as a legal right, simply “fell out of use” as easily as girdles or fax machines. Imagine for a moment struggling to recall the days when you or your grandparents had the right to a fair, speedy trial, wondering when this concept became lost in the chasm between written law and reality. Such is the state of law in Mexico, and as noted in a recent piece by a professor at the Colegio de Veracruz, the revival of its corpse “depends on our own glasnost and perestroika” – transparency and reform, the elusive keys to justice.
The project that is the source of this piece was the winner of an investigative journalism grant from AVINA. The concepts, opinions and other aspects of the content of the investigation are the exclusive responsibility of the author and/or the publisher.